Was it defamatory for Yiannopoulos to circulate the faked tweets falsely attributing bigoted statements to Jones?

The answer: probably not, given Yiannopoulos' reputation.

Only false statements of fact can be defamatory. Satire, ridicule, and insults cannot. The faked tweets were intended as trolling and — to use the term extraordinarily generously — "satire", not as a factual claim that Jones had uttered the words. Could some people look at the fake tweets and assume they were real and that Jones actually said those things? Yes. But courts give very broad protection to satire, and protect it even when some people take it seriously. In determining whether a challenged statement should be taken as satire/ridicule/insult/hyperbole or as a statement of fact, courts look at how a reasonable audience familiar with the speaker and the context would take it. In other words, the relevant question is whether the speaker's target audience, informed about the circumstances surrounding the statement, would take the statement as an assertion of fact. I wrote about this in 2013 when I described a D.C. Circuit opinion rejecting a WorldNetDaily lawsuit against Esquire. Esquire's satire of Joseph Farah and Jerome Corsi was protected people readers familiar with Esquire would recognize their story as a parody, not as a news story. Similarly, readers familiar with Popehat would recognize that my accusing Farah and Corsi of sexual molestation of walruses was satire serving as an example of the doctrine, even if someone unfamiliar with Popehat or the case might take it seriously.

Here, a reasonable audience familiar with the context (Yiannopoulos trolling and attacking someone for clicks and attention, and playing to his hooting bigoted admirers) and with the speaker (Yiannopoulos as a hack troll, known for hyperbole and insult, whose followers often fake tweets as a means of ridicule) would likely not take the fake tweets as real, particularly when he fairly quickly followed up with a mock-surprised "you mean those aren't real?" wink to his fans.

I'm not saying that no court could find otherwise. I'm saying that's the most likely result, and probably the correct one under the law.

Remember: nobody needs free speech rights to protect admirable speech by people we like. It's designed to protect despised speech by people we hate. Yiannopoulos deserves contempt for monetizing bigotry, and his fans are loathsome, but his speech is protected.

Comments

And under current readings of First Amendment law (as your Reason link pointed out), Twitter has no obligation to publish his speech. Milo has Breitbart for that, though it will be interesting to see if his predicted Twitpocalypse – in which conservatives will leave en masse for feeling censored or drowned out – will come to pass.

My understanding of Twitter's corporate values is that they have shifted substantially to counteract trolling, harassment, and other untoward behavior, potenitally to the detriment of inflammatory rhetoric like Milo's. There's a perception that their censorious efforts are directed more frequently against conservative voices, though I'm not sure how one would collect the data to test that proposition adequately.

Related question: is the "hypothetical reasonable audience" standard doomed? Donald Trump is incapable of committing libel/slander under this test, and I think we can all agree that any objective examination of his credibility backs that up. But last night a major political party nominated him for president, indicating a high degree of trust in his statements by a significant portion of the populace. Milo is a serial liar/troll, but he makes money as a journalist by catering to an audience who believe that accounts of his serial lying and trolling are themselves lies. Trump voters, Milo readers, etc., are people "familiar with the context" of the speakers' work, but they still take a view of their credibility that's 180 degrees from what precedent requires a court to assume. In other words: is it defamation to make a statement so obviously false that only an idiot would believe it, to a crowd of credulous idiots?

I would say the bigger story here is that Twitter has chosen a side. None other than Jones herself has regularly tweeted bigoted statements about whites, and one need not dig deep to find all manner of horrible things about conservatives spoken by liberals. As an outsider to all that it is obvious to me that Twitter has decided that harassing and vile tweets about conservatives or other groups are ok, while some others are not. They absolutely have the right to do this but let's not mince our thoughts about what exactly they have done.

But what if the average Twitter user does NOT know anything about Milo? Does that actually change the equation? This is the first time I've ever heard of him and it's not like I completely live under a rock. I only heard about it because of the banning, which I've only heard about because of the absurd backlash on a movie I honestly couldn't care less about.

And while on that topic, this movie can't possibly worsen the franchise anymore than that shitty Ghostbusters cereal did. People behind this movement seem to have really forgotten just how much that IP was abused in the 80's.

About as many times as Patrick directly stated in the @Popehat feed that DPRK_News is satire. (The pinned tweet is fund-raising for a charity to get people out of North Korea!) Idiots get caught by the Onion too, but there isn't a significant community of readers who are convinced the Onion is real, take action based on that belief, and actively mount PR offensives to counter reports in the mainstream media that America's Most Trusted News Source isn't 100% accurate.

I realize the line between committed satire and willful deception is hazy, and I'm not suggesting the credibility test we have now should just be thrown out and replaced with nothing — off the top of my head, maybe the question should be whether a reasonable person would expect the audience for this statement to believe it, even if presented with evidence to the contrary.

In any case, the real world is increasingly at odds with the principle that a false statement that's clearly false to a dispassionate observer can't be reasonably expected to cause material harm because of its obviousness.

"nobody needs free speech rights to protect admirable speech by people we like. It's designed to protect despised speech by people we hate. "

No, it's designed to prevent the government from persecuting those who criticize it. Free speech (or any other) rights have no application in the private sector. Although the Left is doing it's damndest to change that. Please don't help them by confusing the issue.

No, it's designed to prevent the government from persecuting those who criticize it.

Because Hustler's mockery of Falwell was criticism of the government?

The 1A certainly protects the right of people to criticize the government… but it also protects their right to criticize each other, using language that may be calculated to be as offensive as possible. The government does not allow the law to be used to silence or punish those who say mean things about each other, just as it does not require any private entity to provide a platform for speech it does not approve of. Twitter cannot be sued for allowing Yiannopoulos to speak, and it cannot be sued for NOT allowing Yiannopoulos to speak. That is as it should be.

What David said 1:08. I was worrying about how this would operate under circumstances of extreme epistemic closure, where all statements are seen as somewhat ironic. Indeed, it seems to be impossible to call anyone on their language, as just know this Bald-ass Galoot.

I would say the bigger story here is that Twitter has chosen a side. None other than Jones herself has regularly tweeted bigoted statements about whites, and one need not dig deep to find all manner of horrible things about conservatives spoken by liberals.

People have been claiming that Milo has harassed Twitter users and encouraged his readers to harass Twitter users, things which are violations of Twitter's ToS. If true, then Milo getting banned vs Jones not getting banned aren't comparable.

Um, yeah. I'm still waiting to see a racist tweet. Insulting a minority for being fat is not racist, and the fact you think it is shows your inability to think as an adult. Besides, where are the fat, ugly dude's tweets? Oh I know, you lefties aren't very big on the whole "honest" thing, are you.http://www.breitbart.com/tech/2016/07/20/double-standards-leslie-jones-racist-twitter-history/
And "people have been claiming" is easily proven by actual tweets which no leftist site has managed to find yet? LOL!

No, his crime was being a hateful inciting prick who likes to sic hordes of similar folks onto largely innocent targets. Twitter's issue is that they only took notice when he was attacking someone who actually had some influence.

I'm not going to address the broad subject of Twitter banning the needy, cynical huckster Milo Yiannopoulos. It's been done, you know what I'd say, and I don't have much to add.

Do I know what you'd say? Sort of. I know you'd say Twitter has the right to allow or disallow anyone or anything on their private service, and their actions are not government actions and do not implicate the First Amendment. I know you'd say Milo is vile. I know you'd say many of his fans are hateful and awful people. I'd agree with absolutely all that.

But we get to have opinions about whether private businesses in the business of providing a platform for speech have acted appropriately or not. And, placing the above aside, I am genuinely curious what your opinion would be.

I'm having a hard time finding a story that describes what Milo did in this particular instance that was so awful that a company that pretends to be in favor of free expression would be morally justified in shutting him out. I'm not saying he didn't do anything to merit a ban. I'm saying I can't find any evidence of it. In the stories I read, he called the woman barely literate or "terrible" or said she was playing the victim. Was that really it? Seriously?

I am not a fan of the guy and am admittedly probably far less familiar with him than many others are. What little of him I have seen, I find largely repellent. I'm not sure Twitter should ban someone for being repellent. But maybe it depends on just how repellent.

This is an area of first amendment law that I tend to disagree with. I generally don't like to reward people for being pathological liars. I should be able to tell that a piece is satire by reading the piece (the entire piece: you don't get to pull sentences out of a satirical article) I should not have to dig into the background of the author in order to figure out if the author is known for lying.

I suppose in general I think that defamation is protected far too much in the US, which probably isn't a popular opinion here. I don't think that "don't tell harmful lies about people" is an unreasonable curtailing of people's first amendment rights. Yes, I think that includes so-called "public figures", many of whom are not really public through any choice of their own, and their actual ability to counter harmful speech with speech from their supposed high platform is in fact pretty limited. I don't think it's any great crime to ensure that people telling lies are good enough writers to make it clear that their assertions are indeed not true.

Okay, to me, this explanation seems ridiculous. You're saying that Milo's reputation means that it's unreasonable to hold him accountable. Or basically, because he's a lying asshole, he gets to be a lying asshole. That's absurd. Though, based on your own argument, I actually think you're wrong here even by your own argument; given that it's his own followers, i.e. an "audience familiar with the speaker and the context", who are spreading these things further as if they were true, clearly familiarity with him isn't enough to realize that he's just lying because he's a terrible person like that. Unless you would seriously argue that his gang of racist, sexist followers don't constitute a "reasonable audience" and therefore their actions based on his own words don't count here, and therefore him deliberately instigating them is fine, but that's even more absurd.

Besides that, his fake, racist tweets are still being paraded around as real by numerous people, so clearly the "it's unreasonable to expect people to believe him" argument fails, because that's demonstrably not what's going on.

His fake tweets are but one more part of the harassment he launched at Leslie, and are being used for further harassment of her. Acting like they're anything else is naive at best, deliberately disingenuous at worst.

Though, based on your own argument, I actually think you're wrong here even by your own argument; given that it's his own followers, i.e. an "audience familiar with the speaker and the context", who are spreading these things further as if they were true, clearly familiarity with him isn't enough to realize that he's just lying because he's a terrible person like that.

But do his followers actually think it's true, or are they retweeting it because they think it's funny and/or because they know it will piss people off?

I can understand your point of view, but satire is not about pathologically lying. Satire is sometimes about humor, but it is often about political criticism. It has a long tradition of this with it being documented in ancient Greece. Mark Twain was well known for working satire into his work, and Flatland by Abbott contained satire as well as interesting reflections on Geometry.

Now of course, not all satire rises to the level of Twain or Abbott. Perhaps the world would even be better off without the vitriolic satire of people like Milo. But once you decide a line can be drawn, it is hard to guarantee that you will like where it is drawn. I would be content to suffer Milo to write his puerile ramblings to ensure that Mark Twain is not suppressed. And it goes further, even if the line is drawn perfectly and every judge and jury out there can be trusted to rule perfectly, there will be questions about where the line is within the public. Failing to protect satire means we may not get the next Twain.

As Ken said, " nobody needs free speech rights to protect admirable speech by people we like." Instead, we need to protect even despicable speech to ensure that admirable speech is made.

I'm not a person of color, but I am in a class of people who are frequent targets of abuse by the kind of people who find Milo admirable. It is so hard to help my fellow travellers see that no, we can't just outlaw "hate speech" or find some other way to criminalize being a massive asshole. When people face abusive language and threats merely for being so bold as to dare to have a presence online and perhaps express the occasional opinion, it is very easy to want to believe that "there must be something" we can do.

It is very hard to help them see that any authority we were to give the government to use against shitlords like Milo will inevitably be used against *us*. We are the ones on the margins, not them.

That truly baffles me. Communist revolution after Communist Revolution makes a point of liquidating the Intellectual Class …. and Intellectuals still write Pash Notes to communists. Censorship of "obscenity" was famously used to muzzle early Feminist attempts and teaching about birth control … and modern Feminists still want to censor. The Liberal/Progressive Left spends every Republican administration whining and moaning about persecution (as if they were actually suffering any; how can I disprove the comparisons of Bush to Hitler? The people who made them are still alive.) and then, the minute their party is back on top they start doing exactly what they complain of … as if it could never come back on them.

I suppose it runs the other way, too. but since the Media has kept the Left's narrative in front of my face for my entire adult life, the Left's idiocy is what I see most of.

I'm sure this is my bias as an atheist, but when I think of "whining about persecution" I think first of conservative evangelicals. As you allude, we see what we expect to see.

As far as being baffled, it's not that strange to me. It's not well-informed or sensible, but I do understand it. The people I'm discussing with aren't think-tank types, party insiders, or people who overall think deeply about politics or policy. That's not to say that they're stupid or generally ignorant; they've just spent their mental currency elsewhere.

By and large, they're people who have been hurt or feel empathy to those that have and *feel* that the world could somehow be made better. They don't want to be told it is impractical. They just want to feel safer.

I know and you know that ceding authority to the state because one is afraid doesn't end well. Still, I think it is human nature to do so, and not a failing of the left only.

There's a perception that their censorious efforts are directed more frequently against conservative voices, though I'm not sure how one would collect the data to test that proposition adequately.

As many times as Milo and his followers describe themselves and each other as "conservatives," it doesn't make it so.

I think that if you could collect the data, the number of people suspended who are conservatives might be higher than those who are not, but the number of people suspended for expressing conservative ideas would be zero. Unless you are positing that racist harassment is a conservative value?

Matthew wrote:
"People have been claiming that Milo has harassed Twitter users and encouraged his readers to harass Twitter users, things which are violations of Twitter's ToS. If true, then Milo getting banned vs Jones not getting banned aren't comparable."

Except that she did things just as bad and is being rewarded. Here is her encouraging her followers to attack another poster

I think most of the people Milo insults deserve to be insulted. All the little college snowflakes, for example. He reminds me a bit of Cassius Clay, another self-promoter. The world is a more interesting place because he's in it. Sorry to learn that he sends you into fits of ranting, Ken.

No, I think your argument boils down to "he's a known liar, so anything he says is exempt from defamation charges because obviously he doesn't intend to be taken seriously," and I disagree with that premise. Milo's not "satirical," he's a troll who likes to lie. You're simply saying that if you lie enough you're exempt from defamation law, and that can't be a policy that we uphold as a country.

Um, no Bob, that's not what the law is. The law is that a statement is satire if a "reasonable audience familiar with the speaker and the context" would know that it's meant as satire (that's the 'what' – we all agree on that). What we're discussing are opinions on how the abovementioned law on satire applies to this situation.

My argument is that his audience does not take his statements as satire, nor does he intend for his audience to take them that way. Rather, he intends them to be taken as fact, and his audience does. The fact that you and I may think "well, any reasonable person would disagree with Milo's opinions and therefore never believe anything he says," does not mean that he gets a "satire" exemption from defamation liability. That would mean that an anti-vaxxer or a 9/11 or Sandy Hook 'truther' could never be guilty of defamation because any 'reasonable' audience should know they're full of shit.

Problem is, MB, federal courts have been considering how a work of "satire" would be interpreted not by the intended audience, but by reasonable readers familiar with the work. This is how the DC circuit handled Farrah v. Esquire three years ago, the case that Ken mentions. You can certainly try arguing that such a standard should be discarded because Milo's fans take him seriously, but that seems highly problematic as it relies on arguing over an actual third-party's state of mind, rather than a hypothetical reasonable man's interpretation. If you are aware of any court ever entertaining it with regard to a libel/defamation suit, post the name of the case.

And regards to your hypothetical: Yes! If you have developed and nurtured a reputation as a source of complete and utter bullshit, it would be very hard to commit defamation, at least against a public figure.

@whitebecky1776 bitch I want to tell you about your self but I'm gonna let everybody else do it I'm gonna retweet your hate!! Get her!!

That's pretty clearly dogpiling — I mean, if I were writing a manual to describe it, and I wanted a "this is the extremely obvious case, one you probably won't see in real life, but just to establish what it is, yeah, I'd have Get her!! in there."

But does Twitter actually have a policy against dogpiling that someone could point me to? I get what it is, but it seems to be something the community alternatively thinks is/wishes were prohibited. Twitter seems to follow a list of unwritten rules that change depending on how important you are.

Bob: Trying to compare Esquire to Milo is like trying to compare Steven Colbert's fake spoof conservative character to Glen Beck, or trying to compare The Onion to a Tabloid. They're two entirely separate categories. There's a substantial difference between being widely known for being satirical and being widely derided as an unreliable source of information by the cognoscenti. The former gets you a 'satire' exemption from defamation liability, the latter does not.

MB, your comment reminds me very strongly of the frequent (and wrong) claim that "oh, but bloggers aren't real journalists, they don't get protection from blah blah law." Milo doesn't have to be a professional satirist to get satire protection. He doesn't even have to intend to be a satirist. In Hustler v. Falwell (1988) the Supreme Court found that Hustler's parody was entitled to first amendment protections in part because Falwell was a public figure, and in part because the alleged libel was something that "no reasonable person would have believed". The key is reputation and reasonable interpretation, not amateur vs. professional or skilled vs. crude.

MB, your comment really reminds me of those people who argue (wrongly) that "so and so blogger is not entitled to journalism protections since he's not a real journalist!"

In Hustler v. Falwell (1988) the Supreme Court found that Hustler was protected from most claims because no reasonable person would take their parody seriously, and the target was a public figure.

It doesn't matter if the satirist is professional or amateur, skillful or crude. The satirist doesn't even have to claim or intend to be making satire. All that matters for this specific analysis is whether a reasonable person familiar with the subject matter would take the writer seriously.

Amateur vs professional isn't the distinction in controversy. It's "satirical vs so-bad-you-personally-feel-most-people-shouldn't-believe-it." The latter doesn't fall into the former's category. By your reasoning you could never sue a truther, anti-vaxxer, Scientologist, or Donald Trump, because hey, all sensible people should know better than to listen.

It's not my reasoning, MB. The US Supreme Court has specifically discarded defamation suits against public figures that are based on accusations "no reasonable person would believe". You may think you are arguing with my reasoning, but you are arguing with established case law.

Look, you can argue that reasonable people would take Milo seriously. You can argue that Milo doesn't have as bad a reputation with facts as I have implied. But you are currently arguing with the Supreme Court.

So, let me see if I can summarize the argument of this article (and, by extension, United States law):

Milo can't be prosecuted for defamation because he is such an asshole that no one would ever believe anything that he ever says about anything.

Ok, if that's true, then that means it falls on the prosecution to argue that Milo did two things:
1: He KNEW beyond doubt that the tweets were faked.
2: He, in a very public and earnest manner, tried to get other people to believe they were real.

And if those two points can be proven, beyond reasonable doubt, then it could be possible for him to face legal punishment for defamation.

If there's something incorrect about what I just wrote, please let me know. I'm still doing a lot of learning about First Amendment/Free Speech law.

Regarding Leslie Jones' "Get her!" tweet, it was in response to an account that was harassing her, an account that has now been banned for harassment, and it came hours into the larger harassment campaign that Jones was facing.

It was an inappropriate response, but it was not even remotely comparable to Milo's unprovoked harassment.

I realize the line between committed satire and willful deception is hazy, and I'm not suggesting the credibility test we have now should just be thrown out and replaced with nothing — off the top of my head, maybe the question should be whether a reasonable person would expect the audience for this statement to believe it, even if presented with evidence to the contrary.

….@Zachriel, I get that "Preponderance of Evidence" is the technically correct term for what I meant to say, but I'm reading through a definition of the term, and it basically seems interchangeable with "beyond reasonable doubt", i.e. there is so much evidence in favor of some claim, and so little evidence against it, that it would be obvious that that claim is true.

I'm sure that there are specific points where there are differences between "Preponderance of Evidence" and "Beyond Reasonable Doubt", but it seems like it's closer to two overlapping circles than a Venn diagram.

I appreciate the correction, and will work to make sure that I specify as such in the future. But is there anything besides that that I have misinterpreted and/or gotten wrong?

@David: "[I]s the "hypothetical reasonable audience" standard doomed? Donald Trump is incapable of committing libel/slander under this test, and I think we can all agree that any objective examination of his credibility backs that up. But last night a major political party nominated him for president, indicating a high degree of trust in his statements by a significant portion of the populace."

Or a belief by a significant portion of the populace (that is, the ones that have been paying attention) that nearly all politicians lie much of the time, so what if Trump is lying all the time? Trump is not more or less trustworthy than his opponents, but he comes from outside a Republican establishment that has consistently screwed their constituents every time they got into power. Voting for Trump is not so much about getting a better potential President as in telling the establishment, "This time _you_ don't get to screw us again."

PizzaDude: I get that "Preponderance of Evidence" is the technically correct term for what I meant to say, but I'm reading through a definition of the term, and it basically seems interchangeable with "beyond reasonable doubt", i.e. there is so much evidence in favor of some claim, and so little evidence against it, that it would be obvious that that claim is true.

They are actually quite different standards. While you provide a fair description of "reasonable doubt", "preponderance of the evidence" means more likely than not. "Preponderance of the evidence" only requires a slight tipping of the scales.

Satire is protected based on a "reasonable reader" interpretation. It is usually incumbent on the writer to make sure that the reader knows that it was satire, something the writer had no intention of doing. He's a troll. The fake tweets could certainly be thought by many people to be real. But not every insult is worth the expense of pursuing.

The problem with Twitter is they think it's OK to shut down conservatives, and allow leftists to continue their vile ways unmolested. You may find Milo to be repellent, but Milo has exposed their hypocrisy.